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tv   [untitled]    February 18, 2012 6:30pm-7:00pm EST

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convinced that "we should revoke or suspend the order," especially once protesters from both political parties began filling the streets to demonstrate against it. some interference did remain unacceptable to lincoln. by this time, however, censorship and interference were common place within military lines. general suppressed news and banished reporters who talked too much. their argument was, if they publish something about troop movements, the enemy will learn about it and impair our ability to surprise them and create extra danger for our soldiers. but they also castigated reporters who criticized their leadership. one was sentenced to dig trenches for 60 days. another to ride a horse out of camp. backwards, which was a sign of humiliation, a sign across his
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chest and back that read liabber of the press. leadership con tried revoking one decision, but unwilling toer state his most valuable general, he added a caveat, if general grant will give his expressed consent. general grant didn't want to give his consent, he wasn't crazy about reporters either. so he passed the buck to general william sherman who never met a reporter he didn't hate. absolutely hate. oblivious to the politics because lincoln hoped to keep the herald's unpredictable editor, the democrat james gordon bennett inside the pro-war camp, sherman sent the reporter the following message. come with a sword or musket, prepare to share with us our fate in sunshine and storm, and i will welcome you, but come as the representative the press, which you yourself say makes no slight difference between truth and falsehood and my answer is never.
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the ban on mr. knox remained in force. fella named william mckee who lincoln called a democrat editor, which is akin to a worse adjective had better luck. he got ahold of and published lincoln's official letter promoting a general named john schofield in missouri. schofield was outraged. he demanded that mckee name his source and when he refused ordered him arrested. lincoln gently reprimanded the general. not for violating freedom of the press, but for upsetting the political card. i fear this loses you the middle position i desire you to occupy in missouri. missouri is a state teetering between the south and the north with a lot of bloodshed. i care very little for the publication for any of the letters i've written, please spare me the trouble, this is likely to bring.
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schofield's answer was he has to be arrested, he has to be restrained. so lincoln said okay, there's an apparent impropriety but it's a case where no evil could result and i'm entirely willing to overlook. finally knox was set free. as lincoln had written schofield in the letter that started the whole business, the one that was published. a good thing to be published because they reflect his overall policy on martial law in all the border states. let your military measures be strong enough to repel the invader and keep the peace, but not so strong as to unnecessarily harass and persecute the people. and this included editors. you will only arrest individuals and suppress newspapers when they be working palpable injury to the military in your charge. and in no other case will you interfere in any form or allow it to be interfered with violently by others. still wiggle room, the army had
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incredible maneuvering ability in the areas under their control. but lincoln was changing. he was willing to assume the worst when border states was the highest. now he favored what he called great caution, calmness, and forbearance, but the greatest evidence was yet to come. in 1864, here in new york, in the one instance in which he took personal possession of a crackdown, he signed a document. he didn't write it, but he signed it declaring that the new york world, a democratic party, had wickedly and traitorously printed a treasonable nature designed to give aid and comfort of the enemies of the united states. the order commanded general john a.dix to arrest and imprison the editors, proprietors -- take
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possession of the printing establishments and prevent any further publication. tough words and actions indeed. why the fuss over a bogus pr proclamation about volunteers? believed the democratic press conspired to release a fraudulent presidential order calling for 400,000 new volunteers in the union army in order to send gold prices plummeting following which editors would buy in at low prices and reap huge profits once the proclamation was disavowed and stocks rebounded. according to the "new york world" which maintained its innocence, a messenger had mysteriously come to the office late one night bearing this official-looking proclamation. most of them looked at it and said this doesn't look right. we're not publishing it, it's too late in the day. the president doesn't issue things at 8:00 at night. but the new york world and another democratic paper did,
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the journal of commerce. lincoln threw the world's editor mantan march vel into jail as long as a "new york times" reporter and an old thorn in lincoln's side. so when he was told that howard was in prison, lincoln must have said, okay, throw away the key. as it happened, henry ward beecher, the minister of the plymouth church told lincoln that indeed howard had done the whole thing himself with the hope of making some money. now he paid the price for both missteps including fraud. he stayed in prison for a long time. and then to show how complicated this became, the governor of new york, a democrat named horatio ordered he be put on trial for
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trespass, kidnapping, and inciting to riot. the poor judge who heard the case didn't quite know what to make of it. he sort of issued a half hearted ruling saying the suspension was in part unconstitutional and general dix is subject to indictment. in a general can close down the newspaper, they could indict the general, but they didn't indict the general. nothing really happened. the world case remains something of a mystery, but it was one case in which lincoln himself is known to have signed that document that indicated he believed the line had been crossed separating press freedom from criminality and treason. now i realize i've offered an avalanche of evidence here and i don't want to convict abraham lincoln, especially to this distinguished audience of judges. so let me suggest here that in my own view, lincoln deserves to be judged not only by what happened but what didn't happen
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next. just weeks after the world's case, he was renominated for a second term as president. a lot of people thought that was itself an abrigation of power. it was -- it was 30 years since the president had run for reelection and many people concluded it was lincoln grabbing what was left of free speech, power of the people, and grabbing it all for himself. not unexpectedly, a brutal and divisive campaign followed. but during all of it, lincoln did absolutely nothing to suppress anti-republican per democratic journalism. even when it called for recognition of the confederacy, denounce the emancipation proclamation because then it was back to politics and press coverage as usual with no holds barred, no libel to extreme, no restrictions at all by the government.
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with some justification, at least in the minds of many of his contemptriaries. it was unprecedented. even as the american people partially paralyzed by a political war among themselves, he argued that if the rebellion could force us to forego or postpone a national election, it might fairly claim to have already conquered and ruined us. the election went on. lincoln had no second thoughts, even when the new york world issued daily editorial attacks or published horrifically racist cartoons designed to convince voters that if lincoln were re-elected african-americans would rule the nation with whites sin the servant class, designed to frighten white supremacists to the polls, and it did, it worked.
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lincoln barely won new york state in 1864, did worse than he had done in 1860, but never interfered with the world's right to remain anti-republican and white supremacist in 1864. political wars might be ugly and divisive, but lincoln believed only civil war justified curtailment of press freedom. abraham lincoln did not seek absolute sovereignty, merely the restoration of the press status quo antebellum. and his union armies took increased control of southern territory, press censorship did not increase, it actually decreased. so i think the absence of interference in 1864 serves to vindicate or at least leaven. he let others really take action without his direct supervision.
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he acted to prevent the defection of border states whose departure would've likely destroyed the country and ended any chance for reunification. he acted to prevent the disclosure of troop positions that might endanger his army by tipping off the enemy and by the way, robert e. lee later confided he planned his entire invasion of pennsylvania in 1863, the invasion that led to the battle of gettysburg to read the philadelphia newspapers to know where the union army was moving. in short, lincoln circumvented the constitution to save it. he always did believe that once saved it would again reign. as he put it, lest there be some uncertainties, after the rebellion is suppressed, the executive deems it proper to say it will be his purpose then as ever to be guided by the constitution and the laws. because as he said it in a joking way, no sick patient ever
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developed so strong an appetite for medics during a temporary illness as to persist in feeding upon them through the remainder of his healthful life. and raymond of the times who cheered the closing of newspapers agreed, the temporary surrender of these rights is a small price to pay for their permanent and perpetual enjoyment. in any future great national trial, lincoln predicted, compared to the men of this. we shall have as weak and as strong, as silly and as wise, as bad and as good. let us therefore study the incidence of this as philosophy to learn wisdom from and none of them as wrongs to be revenged. where the press was concerned, did lincoln prove wise or silly? bad or good? at least he was wise enough to remain uncertain. one thing is certain, lincoln believed history, not the courts, quite frankly, would be the ultimate judge.
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so even as we uncover data about this neglected aspect of lincoln's presidency, i would suggest we remember not only to continue faithfully counting individual acts of suppression, that tally is important. but to explore the overall policy and the culture, its self-imposed limits within the partisan press culture of the age, in the unprecedented crucible of civil war and do remember as i submit this case to my friend chief judge judith kay and chief judge lipman, i feel the inevitability of judgment closing in around me. but lincoln never imposed official or national censorship policies beyond understandable control of the military telegraph. the administration considered each case as it came.
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to be sure often acting too quickly and harshly, erring on the side of better safe than sorry. in judging the lincoln record, we have to be certain not to casually apply 21st century rules to a 19th century crisis and a 19th century press culture. the path to understanding requires us to strip away the layers of assumption that understandably obscure our understanding of the volatile press culture of the civil war era and the challenge that rebellion itself posed to majority rule and constitutional law. so in the effort to tone down an increasingly heated debate, i think we need to put ourselves in lincoln's position, presiding over a nation that's falling apart. trying to save the body politic even when it meant sacrificing the limb of constitutional restraint and as lincoln told
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albany, no doctor would ever sacrifice a body to save a limb, but they would sacrifice a limb to save a body. in this effort, we might be guided by one of lincoln's famous anecdotes. confronted once by a vicious attack by another newspaper, the president was rep minded of the story of the traveler who got lost in a thunderstorm. a thunderstorm so violent that it seemed the day of judgment had arrived. after one particularly loud clap of thunder, the frightened man dropped to his knees and offered prayer to which historians and judges alike might well say amen. oh, lord, if it is all the same to you, please give us a little more light and a little less noise. newspaper shutdowns made a great deal of noise then and more now, but understanding the period that made politics and the press part of the same feuding family.
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a house divided and perhaps without his leadership a house doomed to collapse may help us to see this new issue, as well, in an entirely new light. thank you all very much. [ applause ] >> my goodness. talked about all the judges in the room. you'd make a wonderful judge. what a presentation. circumspect, balanced, and with a holding that has withstood the passage of time. well done. well, i know that you would all enjoy sitting around this little table here, but it's too small
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alas for everyone in the room. so you're going to have two surrogates who will join in this little round table. with harold holzer and they'll be seated there in a moment and just to chat about what we've heard over the last few minutes. it's wonderful talk and it'll be carried on a little bit further in an informal setting. so along with harold holzer and judge judith kay, we'll have john walker who is now a senior circuit judge, formally the chief judge of the second circuit, the united states court of appeals. and as some of you may know, he served as a member of the -- does serve as a member of the judicial conference of the united states. he's currently a member of the conference's committee on international judicial relations, and is chair of its committee on judicial conduct and disability. and in new haven, yale law school, he teaches
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constitutional litigation and legal writing and is a director of the united states association of constitutional law. he's also some of you may be reassured to know is promoting the rule of law in china, the middle east, and central and eastern europe and he's very much dedicated to this and we're glad he's there as our ambassador, so to speak. and before going on the bench as some of you may know but i didn't realize, he'd been state council of the republican of -- so why don't you all come up here and take your places at the table. judge walker, judge kay, harold holzer. >> still in the hot seat.
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>> still in the hot seat. >> fantastic. really, really fantastic. so this will be the 42nd book? >> no, there'll be one between the 41st and -- >> and what will that be? >> it's a book called "emancipating lincoln," it's a published version of some lectures i did at the department of african-american studies. >> and how long before we have this one? >> two years if i stop giving talks about it. >> and what's the adjective that goes before the word lincoln? it's the one that precedes it is emancipating and this next one will not be convicting lincoln, what will it -- >> no, it's actually called uncivil wars: the press in the age of lincoln. >> so i have a question. what was the -- can you be a little more precise on what the standards were lincoln used in
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judging between political dissent, sedition, and treason. and how did he actually -- did he expound on this publicly? and if so, can you tell us what he said about it? >> and i'll piggy back and add personal criticism too. >> okay. >> we're getting a lot of feedback, but -- >> what can we do about that? >> is there a doctor in the house? >> now let's see what happens. >> that's good. all you have to do is keep your hand there and never speak again. >> right. try that. >> you're very generously assuming he had a set standard of rules and rationales. cases were brought independently by the commander in chief. he was later asked to ratify or disown or overrule.
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the post office, the postmaster general closed down the mails to exports to the confederacy. the old three-mike syndrome. i know it well. the war department acted. if there are standards, they are, number one, endangering union armies either on the march to washington or in hostile territory. >> was there concern about the effect of speech on recruiting and desertion? >> yes, there was a concern that the expressions of -- >> was it an excuse? >> -- would've limited volunteerism and created more objections to the draft such as we saw flame into violence in new york and some upstate cities in connecticut, and riots that took place when the draft was first instituted.
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>> what was the legal standard? what was the articulated standards? >> the legal -- i shouldn't have said let there be no noise and light, whatever that anecdote. i'm paying the price. the legal standard was the law of war as lincoln put it. he was the commander in chief in the time of rebellion. that gave him leave since the -- the -- the ability to suspend the writ is ambiguously written. it's in the congressional section, no one knows why it's in the congressional section, doesn't mention congress. so he had the right to suspend the writ in an absolute emergency, could've called congress back into session to ratify it earlier. but there was some elections taking place and he didn't want congress to come back. >> you began your talk this evening with a startling number. an array of incidents of suppression. all of this just went to acts of war? >> yes. well, some of the 300 that i've counted included mob attacks
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that were unrestrained or encouraged. it was a routine. and by the way, i've left out the whole area of confederate suppression. the confederacy was practically a police state much more so than the union. so in a place like harpers ferry, virginia. it is the town that changed hands most often during the civil war. something like 30 times. every time another army took a town, the soldiers would go do two things. have a lot of liquor and burn down the newspaper. the union troops burned down pro-southern newspapers in kentucky, mississippi, georgia, and confederate troops burned down newspapers in pennsylvania and maryland. >> how much do you think control of the press affected the outcome of the war? and this is a question of steven kay's daughter. she gave me this as i sat next to her. >> that's a very, very good
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question. i'm so sorry she asked it because it's a hard one. i think the original suppression and i did it out of order chronologically, i decided on my own dramatic arc tonight. but the first acts encouraged the administration to conduct more such acts. lincoln suspended the writ because union soldiers on the march to washington were attacked on the streets of baltimore. where he himself had been threatened and decided not to go publicly through baltimore. people died. massachusetts volunteers, on the very train crossing that he was going to take. the governor of maryland, governor hicks came to lincoln and said i think your troops should go a different way. and lincoln got furious and he said my troops are not birds, they can't fly. they're not moles, they can't dig under the earth, they shall go through baltimore. and he decided he had to prevent
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the state from seceding and creating and isolating washington. it was now a war. this territory was threatening to join a rebellion against the constitutionally elected government. so he suspended the writ in maryland, arrested the editors, he arrested the famous merriman case which has inspired no less than two books in the last month. and, you know, whatever tone he ruled about producing the writ for merriman, he stayed in prison. he wanted the legislator -- if the maryland legislature had been allowed to sit, they would have voted for secession. so lincoln actively -- and this is beyond freedom of the press prevented the legislature from convening. >> so the question -- i want question i have goes back to what we were discussing earlier. my understanding there was this meeting in albany you described and something called the albany resolves presented to lincoln
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and lincoln reacted to that publicly and tried to delineate between -- well, the kind of conduct that warranted suppression and the kind that didn't warrant suppression. i think a similar thing happened after the chicago times incident, as well. and in each case he eventually, was not kept in jail, he was banished to the south and the chicago times situation was resolved and chicago times favored by lincoln fairly quickly. but my understanding is that he did make some kind of statements about what he was doing and why he was doing it at that time. >> do you think that's too compound a question informed? >> well, i'm trying to lead into whether there were standards. >> well, he's creating them as they go along. and belated response to ms. kay's question, he had no idea and we have no idea whether it had an impact. he didn't suppress newspapers because he didn't come from royaling free speech that he
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wanted to end because he sort of liked it. he liked debating in the press and engaging crowds. he just was petrified that the country itself would fall apart if "sedition" was allowed, disloyalty. >> i was going to ask you to comment for that moment or two on the milieu he did come from. because what we've heard tonight isn't quite consistent with our view of the great country lawyer. >> well, he -- remember his first real job as an adult or one of his first real jobs was as a postmaster in the town of new salem. and people got their newspapers from the big city like springfield by post. and they soon began wondering why their newspapers came instead of in their usual crisp folded fashion clumped together well, the answer is, they had been read. the postmaster was reading the papers first and delivering them later. he was introduced to the world
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beyond his mill town by the newspapers that covered springfield and chicago and even washington. it awakened the world in him but awakened it in a way that was extremely partisan. he read democratic and republican papers, flaying away at each other, eventually over the mexican war, eventually over the sectional crisis. in that world, he developed greater ambitions. what he read was possible from the newspapers. >> sure. >> and of course, educated himself in the law just as he had educated himself in the bible, shakespeare and the other things. >> conducted at least in the instance by the military who thought this was necessary. guided or misguided as it might have been. was that because lincoln had created an atmosphere that said
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go ahead and do it? or was it because they were going to go ahead and do it and he would react to it and perhaps allow it or perhaps not allow it. >> lincoln is known as the great pardoner when it came to deserters who had death sentences imposed on them. by the same token, he was probably the biggest executioner in the history of the military because a lot of people who are accused of -- convicted of desertion were executed, they were shot. lincoln was always walking a fine line between adherence to his view of the law and morale building. so letting generals have their way, he was recognizing that they were on the ground. he didn't have instant access to the conditions on the ground. and until they proved themselves inept as so often they did like bernside who had been banished to the west because he'd done ch

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